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Suture Express, Inc. v. Cardinal Health, LLC

United States District Court, Tenth Circuit

December 31, 2013

SUTURE EXPRESS, INC., Plaintiff,
v.
CARDINAL HEALTH, 200, LLC, et al., Defendants.

MEMORANDUM AND ORDER

K. GARY SEBELIUS, Magistrate Judge.

This matter comes before the Court upon Defendants Owens & Minor Distribution, Inc. and Cardinal Health 200, LLC's Motion for Protective Order (ECF No. 71). For the following reasons, the Court hereby grants in part and denies in part Defendants' Motion.

I. Background

This is an antitrust and unfair competition action brought by Plaintiff Suture Express, Inc., a company that purportedly specializes in the distribution of sutures and endomechanical ("endo") products to acute care customers. Defendants also distribute sutures and endo products, as well as a broad array of medical and surgical ("med-surg") supplies. Defendants are business competitors of Plaintiff, each other, and a number of non-parties. Plaintiff claims that Defendants have employed exclusionary practices by tying and bundling the sale of med-surg supplies to sutures and endo products to prevent acute care providers from dealing with Plaintiff. Plaintiff alleges that, in turn, this practice hinders its ability to compete in the marketplace.

On October 2, 2013, the Court entered a Scheduling Order in this matter. As set forth in the Scheduling Order, if the parties disagree about the scope or form of a protective order they may bring the dispute before the Court on an appropriate motion. Defendants timely filed the present Motion for Protective Order, asking the Court to resolve issues relating to the scope of a protective order.

II. Discussion

Plaintiff and Defendants agree that a protective order is necessary for this case. As further explained below, the Court also agrees. However, the dispute between the parties and the current issue before the Court pertains to an extra level of protection proposed in the parties' respective protective orders. Both parties agree that a two-tiered protective order is necessary in this antitrust litigation-the first tier for "Confidential" information and the more restrictive second tier for "Highly Confidential" information. In general terms, the "Highly Confidential" designation is limited to more sensitive information and accessible by a fewer number of persons compared to the "Confidential" category.

The parties agree on the information that may be designated as "Confidential."[1] Further, the parties substantially agree on the individuals who may access "Confidential" information.[2] The disagreement pertains to the information that may be classified as "Highly Confidential" and those who may access such information. In particular, the dispute between the parties focuses on four items. First, the parties disagree about whether information relating to products, other than sutures and endo products, should be designated "Highly Confidential." Second, there is a disagreement about whether contracts, pricing, and rebate information not currently in force between a Defendant and its customer is "Highly Confidential." Third, the parties disagree about whether the catch-all category, "or similar highly sensitive and proprietary commercial information, " should be included within the "Highly Confidential" definition. Fourth, there is a dispute about whether Andrew Rush, a member of Plaintiff's Board of Directors, and Defendants' in-house counsel should have access to "Highly Confidential" information.[3]

Set forth below are the parties' respective proposed definitions for "Highly Confidential" information:

Plaintiff's proposal:

The designation "Highly Confidential" shall be limited to information that the Source has determined, in good faith, contains or reveals trade secrets; business plans and strategies; any current pricing or rebates for the sale of sutures and endomechanical products; confidential negotiations or current contract terms between a party and a nonparty related to the sale of sutures and endomechanical products; any draft agreements currently being negotiated; projected financial or pricing data; or planned or unpublished intellectual property applications.[4]

Defendants' proposal:

The designation "Highly Confidential" shall be limited to information that the Source has determined, in good faith, contains or reveals trade secrets; business plans and strategies; pricing, rebate, or related information; confidential negotiations or contract terms between a party and a non-party; financial or pricing data; planned or unpublished intellectual ...

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